Petition — Jones v. Heckler

Office-Supreme Court, US.

83 -52 5 Fina. 2

No. SEP 27 1983

ALEXANDER L STEVAS,

“STERK

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

JACQUELYN A. JONES

AND

JACQUELYN A. JONES, AS GUARDIAN AD LITEM

FOR LOREN A. LADD, LORA ANNE LADD,

DAVID LADD, MINORS

Vs.

MARGARET M. HECKLER

SECRETARY OF HEALTH AND HUMAN SERVICES

PETITION POR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CiRCUIT

Of Counsel for Petitioners

Raymond J. Bradley

Attorney at Law

P.O. Box 5090

Eugene, Oregon 97405

Telephone: (503) 343-1473

ihe

QUESTIONS PRESENTED

1. Whether the Secretary of Health and

Human Services is bound under the Full

Faith and Credit clause to honor the Lane

County, Oregon, Circuit Court Orders which

voided an Oregon adoption decree? Whether

the Secretary of Health and Human Services

erred in ruling that the State of Arizona

would not grant Full Faith and Credit to

the Lane County, Oregon, Circuit Court

Orders?

2. Whether Appellants were denied Due

Process of Law because Appellants were not

given an administrative hearing by the

Appeals Council of the Social Security

Administration as required by the Order of

the United States District Court for the

Federal District of Oregon, dated May 5,

1980?

ii.

3. Whether Appellants were denied

Equal Protection of the law by the

Secretary of Health and Human Services for

the reason that the Appellants' status is

dependent upon whatever forum is

interpreting the Lane County Circuit Court

Orders?

PARTIES

The parties to this cause are those

whose names appear in the caption above.

-iii-

TABLE OF CONTENTS

Questions presented for review......eeee06 i

PArtieS.cccccccccccccceccccsccccccsccccccceds

Index tO Appendix. cccccccccccccccccccvcvrshs

Table of Authorities....cccccccccccccceses V

Opinions below. .ccccccccccccccccccccccscs 2

Jurisdiction of this COurt...cseeeeseeeee 3

Constitutional and statutory provisions

CS RESET EPCOS TEE T TL eee TTT ee eee 4

Statement of the CASCe oe eeveseseseceseses 6

Reasons for granting the petition for

Writ of Ne ee ge ewes oes 5.6 eee

Be Full Faith and a ee

II. DUG PEOCOBBccccccccvcescecccesascoas

IIIT. Equal Protection..cccccccccccccccal

tn. .. tak one ed be dnes 60s ee eeeeeeeune

INDEX TO APPENDIX

June 30, 1983

a

~

Order of the Court of Appeals for the 9th

Circuit which denied Appellants petition

for rehearing ert veTrTerrre Try te ee

-iv-

May 2, 1983

Memorandum of the Court of Appeals for

the 9th Circuit. .ccccccccccseccccssces Am2

August 21, 1981

Finding and Recommendation of the United

States District court for the District of

OF EGON ccc ccccccccccccccccccccceccecc ech

October 31, 1980

Decision of Appeals Council, Department

of Health, Education and Welfare, Social

Security Administration, Bureau of

Hearings and AppealsS.....seeeeeeeeeecAnl7

May 5, 1980

Finding and Recommendation of the United

States District Court for the District of

OFEgGON ce ccccccccccccccccccccccccccccs cAh@30

March 4, 1980

Lane County, Oregon, Circuit Court Order

which voided an adoption decree......A-5l

-Vv~>

October 18, 1976

Lane County, Oregon, Circuit Court Order

which set aside an adoption decree...A-54

TABLE OF AUTHORITIES

Adam v. Saenger, 303 US 59, 58 S. Ct.

454, 82 L Ed 649, reh den 303 US 666,

58 S. Ct. 640, 82 L Ed 1123 (1938).....22

Allen v. Califano, 452 F. Supp. 205.

Dil thnks en Oeeeu6 eee ecedecesececewoscht

Board of Regents v. Roth, 408 US 564, 92

S. Ct. 2701, 33 & BG 548 (1972) -ccccesitds

Brandt v. Brandt, 40 OR 485, 67 Pac. 508

Dt ti dite ye 66.00 e666 66 ee eeboeeseeeene

Campbell v. Kindred, 26 Or App 771, 554

P2d 599 0) aS er.

Cook v.Cook, 342 US 126, 72 S. Ct. 157,

96 L Ed 146 [ant ahne ce et anee dees beeen

Franklin v. Biggs, 14 Or App 450, 513

P2d 1216 TRUS we Seco wscvocgecdewsnsavoane

-vi-

Goldberg v. Kelly, 397 US 254, 90 S. Ct.

10l1l, 25 L Ed 287 (2970)... cece topes e¢beue

Huges v. Industrial Commission, 211 P2d

463 PRER CRORES) 600s s 000 bceveteceveccbecae

Hughes v. Aetna Casualty Co., 234 Or

426, 383 P2d 55 Ch. *) re |

Hurvich v. Califano, 457 F. Supp. 760

(D.C. Cal DUE Rcbrcoenerewoedcevcoevesovsear

In re Adoption of Luke, 414 P2d 176

(Arz. "| Ferrer re rerrrrerrrerivrie sy

In re Gallegos, 187 P. 573 (Arz. 1920)...22

Jimenez v. Weinberger, 417 U.S. 632, 94

S. Ct. 2496, 41 L Ed 2d 363 (1974).....30

Jones v. Harris, 629 F2d 334 (CA NC

Dt pcgeddaceedebovcecosevendesevane stun

Jones v. Roach, 575 P2d 345 (Arz. 1977)..16

Kovats v. Hobby, 132 F. Supp. 771........15

Leeson v. Celebrezze, 225 F. Supp. (D.C.

sa Deo 5.0 be Ob 06060060 06000068686000e000 EN

Marin v. Augedahl, 247 US 142, 38 S. Ct.

452, 62 L Ed 1038, 1042 (1918).........16

-vii-

Matter of Adoption of Hadtrath, 592 P2d

1262, i lle ed Sele a 6 ob oe ae

Milliken v. Meyer, 31l US 452 61 S. Ct.

339, 85 L Ed 278, reh den 312 US 712,

61 8. Ct. 548, 85 L Ed 1143 (1940)...23

Milliken v. Meyer, 311 US 457, 61 S. Ct.

339, 85 L Ed 278, 283, 132 ALR 1357,

reh den 312 US 712, 61 S. Ct. 548, 85

L Ed 1143 (19S) ccccccccseecegrvecanesesae

Norton v. Weinberger, 390 F. Supp. 1084

(D.C. Md. 1975), aff'd. 427 US 524, 96

Ss. ct. 2771, 49 L Ed 2d OFa cc 6s céVeGS Oa

Perez v. Gardner, 277 F. Supp. 985

SPER se eb bd Ce dKOeoroeoccsdeveacnes SeGbat

Perry v. Sindermann, 408 US 593, 92 S. Ct.

2694, 92 S. Ct. 2771, 33 L Ed 570

CRETE se cncedéccceereeéocoveeceseecuseeume

Ray v. Social Security Board, 73 F. Supp.

58 (DC Ala. Ravisoae.dcctesebodsecesenweun

Silbowitz v. Secretary of Health,

Education and Welfare, 397 F. Supp. 862

-viii-

(D.C. Fla. 1973S) cvovercevencéoeenesceweean

Small v. Andrews, 20 Or App 6, 530 P2d

540 (19753).cccccccecescceseuceceedebs enseuae

Starace v. Celebrizze, 233 F. Supp. 452

(19G4) ncocvceccvscccecsvscocsecévsseeteneueur

Sutton v. Leib, 342 US. 402, 72 S. Ct.

398, $6 L Fd 448, reh den 343 US 921,

72 S. Ct. 674, 96 L Ed 1334 (1952).....22

Treinies v. Sunshine Min. Co., 308 US 66,

60 S. Ct. 44, 84 L Ed 85, 93, reh den

309 US 693, 60 S. Ct. 464, 84 L Ed 1034

(1939) ccocccvcccvscescocescceséeecssweeeeeuae

Wachovia Bank and Trust Co. v. Chambliss,

260 SE 2nd 688 (1979) ccccceceeedes seesene

Weber v. Aetna Casuality and Surety Co.,

406 US 164, 173,92 S. Ct. 1400, 31 L Ed

768 £1972) cocccccccececoceseoseseseebeeeue

Weber v. Aetna Casualty and Surety, Co.,

406 US 164, 176, 92 S. Ct. 1400, 1406,

31 L Ed 2d 768 (2973) cccocccscensevdanenn

-ix-

Weber v. Aetna Casuality and Surety Co.,

406 US 164, 173,92 S. Ct. 1400, 31 L Ed

768 PEPE occéecoccccescoceoccccsonecoeeeae

Weber v. Aetna Casualty and Surety, Co.,

406 US 164, 176, 92 S. Ct. 1400, 1406,

31 L Ed 2d 768 ERSTE) cecdusccceveoseeoesne

Westerlund v. Croaff, 198 P2d 842 (Arz.

Dt cheesbeaeeeteseococoovoscesessceceseae

Ziskin v. Weinberger, 379 F. Supp. 124

(D.C. Ohio RUPE cee oserveceodecevcesaseceas

TESTBOOKS AND TREATISES:

The American Law Institute, Restatement

of Law, Conflict of Laws, 2d, 1971,

886, 78, gh ie a I a I OEE SER py

Adoption, 2 Am. Jur. 2d, Ditivenscaanaaun

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

No.

JACQUELYN A. JONES, AND JACQUELYN A. JONES,

AS GUARDIAN AD LITEM FOR

LOREN A. LADD, LORA ANNE LADD, AND

DAVID LADD, MINORS

Ve

MARGARET M. HECKLER

SECRETARY OF HEALTH AND HUMAN SERVICES

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Raymond J. Bradley, Attorney at Law, on

behalf of Jacquelyn A. Jones and Jacquelyn

A. Jones, as guardian ad litem for Loren A.

Ladd, Lora Anne Ladd, and David Ladd,

minors, petitions for a writ of certiorari

to review the judgment of the United States

Court of Appeals for the Ninth Circuit in

this case.

OPINIONS BELOW

June 30, 1983

Order of the Court of Appeals for the 9th

Circuit which denied Appellants petition

£OE COHCALING coccccccccccccccvcssoncetwn

May 2, 1983

Memorandum of the Court of Appeals for

the Sth Circult..ccccccccccccccccscccccAs

August 21, 1981

Finding and Recommendation of the United

States District court for the District of

OLEgGON. ccccccccccccccccccscccscsccccccAMhls

October 31, 1980

Decision of Appeals Council, Department

of Health, Education and Welfare, Social

Security Administration, Bureau of

Hearings and AppealS...ceccscccceeescA~36

May 5, 1980

Finding and Recommendation of the United

States District Court for the District of

OFEGON oe cccccccccccccccccccccccccccecs cA@36

March 4, 1980

Lane County, Oregon, Circuit Court Order

which voided an adoption decree......A-5l

October 18, 1976

Lane County, Oregon, Circuit Court Order

which set aside an adoption decree...A-54

JURISDICTION

The judgment of the Court of Appeals

for the 9th Circuit (App. B,) was entered

on May 2, 1983. A petition for rehearing

was denied on June 30, 1983, (App. A,

infra). The jurisdiction of this Court is

invoked under the Social Security Act, 42

U.S.C.8405(g).

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

1. The United States Constitution pro-

vides in relevent part:

Article IV, Section 1. "Full Faith and

Credit shall be given in each state of

the public Acts, Records and Judicial

Proceedings of every other state."

Amendment V. "No person shall be....

deprived of life, liberty, or property,

without due process of law;"

Amendment IV. "...nor shall any state

deprive any person, of life, liberty,

or property, without due process of

law; nor deny to any person within its

jurisdiction the equal protection of

the laws."

ORS 109.381(3) provides, in part:

After the expiration of one year

from the entry of a decree of adoption

in this state the validity of the adop-

tion shall be binding on all persons,

and it shall be conclusively presumed

that the child's natural parents and

all other persons who might claim to

have any right to, or over the child,

have abandoned him and consented to the

entry of such decree of adoption, and

that the child became the lawful child

of the adoptive parents or parent at

the time when the decree of adoption

was rendered, all irrespective of

jurisdictional or other defects in the

adoption proceeding; after the expira-

tion of such one-year period no one may

question the validity of the adoption

for any reason, either through colla-

teral or direct proceedings, and all

persons shall be bound thereby;

provided, however, the provisions of

this subsection shall not affect such

right of appeal from a decree of adop-

tion as may be provided by law.

STATEMENT

This case is before the court upon

appeal of a judgment of the 9th Circuit

Court of Appeals entered and dismissing

Appellants' complaint for judicial review

of the administrative action of the

Secretary of Health and Human Services.

Appellant Jacquelyn A. Jones and wage

earner Jack A. Ladd were married on April

1, 1961 and three children were born to the

marriage; Loren A. Ladd, Lora Anne Ladd,

and David Ladd. Appellant Jones and wage

earner Jack A. Ladd were subsequently

divorced on November 21, 1968.

Appellant Jacquelyn M. Jones married

Floyd Samuel Jones, Jr. on December 27,

1968 and a decree of adoption of the minor

children, Loren A., Lora Anne, and David

was entered on August 4, 1969, on petition

of Floyd Samuel Jones, Jr. this petition

alleged consent of the natural father, Jack

A. Ladd, in the Circuit Court of Oregon

for Lane County.

On February 27, 1971, wage earner Jack

A. Ladd died in New Mexico and no state of

domicile was ever established by substan-

tial evidence by the Social Security

Administration. Mr. Ladd's death cer-

tificate listed Arizona as his residence.

On May 15, 1972, a Decree of

Dissolution of Marriage was entered between

appellant Jacquelyn A. Jones and Floyd

Samuel Jones, Jr.

Appellant Jacquelyn A. Jones filed an

application for mother's insurance benefits

on August 6, 1975, under the Social

Segurity Act based on the earnings record

of Jack A. Ladd, deceased. She also filed

concurrent applications for child's bene-

fits on behalf of her minor children, Loren

A., Lora Anne, and David on Jack Ladd's

earnings record.

The Social Security Administration

determined on August 13, 1976, that

Appellants were entitled to the above

benefits. Appellants were paid a sum of

$14,495.20, including continuing monthly

benefits.

In reliance on this entitlement,

Appellant Jacquelyn A. Jones entered into

various financial obligations to obtain

necessaries for her and her aforesaid minor

children. Further, and most important,

Appellant obtained an Order dated October

16, 1976, in the Circuit Court of Oregon

for Lane County which ordered that the

adoption of August 3, 1969, be “set aside"

and further provided that, “for all intents

and purposes, said children shall be con-

sidered to be the children of Jack A. Ladd,

and that Floyd Samuel Jones, Jr. shall have

no further claim whatsoever to said minor

children." In effect, the adopting father

was released from all responsibility of

support of the minor children.

In a determination dated April 18,

1977, the Social Security Administration

reversed it's determination of August 13,

1976, and found that Appellants, based on

the same set of facts as it's August 13,

1976 determination, were not entitled to

the survivor benefits previously awarded,

and notified Appellants of overpayment.

Appellant's requested a hearing before

an administrative law judge and after an

oral hearing the administrative law judge

decided, pertinent to this appeal, that

appellants were not entitled to mother's

10

insurance benefits and surviving child's

benefits, respectively.

Appellant's requested a review by the

Appeals Council, Social Security

Admininstration and that request was denied

on March 28, 1978.

Appellants then filed a complaint for

judicial review of this administrative

action in the United States District Court

for the District of Oregon. The United

States Magistrate requested Plaintiff's

counsel to have the Lane County Circuit

Court judicially clarify its 1976 Order

setting aside the adoption decree. On

March 4, 1980, the Lane County Ciricuit

Court, after an evidentiary hearing, made a

finding that the August 4, 1969 adoption

decree was void ab initio. The Order found

that the natural father, Jack A. Ladd, did

not have the jurisdictional mental state to

consent to the adoption and therefore the

11

adoption was void. «his case was remanded

to the Appeals Council for reconsideration

and hearing and to consider the March 4,

1980 Lane County Circuit Court Order. The

Appeals Council, without remanding the case

to an admininistrative law judge for

hearing for further findings of fact,

decided as a matter of law, as pertinent

herein, that Appellants were not entitled

to the respective benefits on their appli-

cations dated August 6, 1975.

The United States District “ourt for

the District of Oregon subsequently agreed

with the Appeals Council and dismissed

Appellants' complaint herein. The Circuit

Court for the 9th Circuit affirmed.

REASONS FOR GRANTING THE PETITION

This case involves important

Constitutional issues of Full Faith and

Credit, Due Process and Equal Protection.

12

The Ninth Circuit Court reasoned that the

Secretary of Health and Human Services was

not bound to follow the 1976 and 1980

Oregon Orders voiding tne Oregon Adoption

decree because the State of Arizona could

refuse to grant Full Faith and Credit to

those Oregon Orders.

One issue before the Court is the

effect of an Oregon adoption decree and its

subsequent voiding on jurisdictional

grounds by an Oregon Court, and whether the

voiding Orders are valid in the State of

Arizona where the decedent was a resident

at his death and therefore binding on the

Secretary of Health and Human Services.

The Court reasoned that Oregon can only

set aside a prior decree if it is void on

its face. Since the initial adoption

decree was not void in its face, a sub-

sequent order voiding it for lack of juris-

diction is not valid and therefore an

13

Arizona Court would not be bound under the

Full Faith and Credit Clause to recognize

the Oregon Order.

This adoption involved three minor

children. Their status is unclear under

the law and hence they were deprived of Due

Process of Law and Equal Protection under

the law. In Oregon they are no longer

adopted. In Arizona they are still con-

sidered adopted and would have no rights to

their natural father's estate. In the

State of Oregon they have no rights against

their adopted father. Social Security

refuses to recognize the Oregon Order

voiding the adoption. The State of Arizona

had no nexus with the children other than

it was the residence of the decedent.

Oregon is the state with all the substan-

tial contacts and, therefore, Oregon's law

should govern and be given Full Faith and

Credit.

14

I.

FULL FAITH AND CREDIT

Whether the Secretary of Health and Human

Services is bound under the Full Faith and

Credit clause to honor the Lane County,

Oregon, Circuit Court Orders which voided

an Oregon adoption decree? Whether the

Secretary of Health and Human Services

erred in ruling that the State of Arizona

would not grant Full Faith and Credit to

the Lane County, Oregon, Circuit Court

Orders?

Under the Full Faith and Credit Clause

of the United States Constitution, a

judgment or order entered in one jurisdic-

tion is considered valid in other

jurisdictions. As with other

judgments, adoption decrees are also

afforded this protection. Wachovia Bank

and Trust Co. v. Chambliss, 260 SE 2nd 688

15

(1979). This principle has been held to

specifically apply to a social security

benefit determination. In Kovats v. Hobby,

132 F. Supp. 771, SDNY 1955, plaintiff's

wife sought to attack a divorce decree that

the wage earner husband had obtained in

Arkansas nine years before he died. The

court first noted that since the wage

earner was domiciled in Connecticut at the

time of his death, the Secretary must look

to Connecticut law to determine the rela-

tionship of plaintiff to wage earner.

However, the court then noted that

Connecticut would give the Arkansas decree

full faith and credit unless plaintiff

could find some jurisdictional defect.

While the Arizona courts have not spe-

cifically ruled on the question of whether

it would extend full faith and credit to a

sister state's adoption decree, it is

settled that Arizona will generally

16

recognize as valid judgments entered in

other jurisdictions. Jones v. Roach, 575

P2d 345 (Ariz. 1977).

The U.S. Supreme Court has said, when

discussing cases involving Full Faith and

Credit judgments between sister states:

"Whether the decision was right or

wrong is not open to discussion

here. If wrong, it was subject to

correction on proper application

to the court which made it, or on

appeal, but it was not void or

open to collateral attack." Marin

v. Augedahl, 247 US 142, 38 S.Ct.

452, 62 L Ed 1038, 1042 (1918).

The Court added “whatever mistake of

law may underlie the judgment, it is

conclusive to all the media concludeni."

Milliken v. Meyer, 311 US 457, 61 S.Ct.

339, 85 L Ed 278, 283, 132 ALR 1357, reh

den 312 US 712, 61 S.Ct. 548, 85 L Ed 1143

(1940).

Even if the Secretary of Health and

Human Services does not choose to follow

the Full Faith and Credit Clause, she

17

should still follow tne whole law of the

domicile state. If Arizona law is to be

applied, not only substantive adoption

principles should be considered, but the

conflicts of laws principles should also be

applied. Perez v. Gardner, 277 F. Supp.

985 (1967); Allen v. Califano, 452 F. Supp.

205 (1978); Starace v. Celebrizze, 233 F.

Supp. 452 (1964). Unfortunately, the 9th

Circuit Court of Appeals made no inquiry as

to whether Arizona would follow the Oregon

substantive law of adoptions. Clearly,

therefore, some reference to conflict of

laws principals need be made.

The validity of an adoption decree is,

under the general rule of conflicts, to be

determined by the law of the state granting

the decree. The American Law Institute,

Restatement of the Law, Conflict of Laws,

Second, 1971, section 290. Adoption 2 Am.

Jur. 2d, section 12. This rule is based

18

on the fundemental principle that one

should look to the relative interests and

policies of the states when determining

which state law to follow. The American

Law Institute, Restatement of the Law,

Conflict of Laws, Second, 1971, section 6.

As adoptions are purely the creator of

state statutes, they should be interpreted

only by the creating state's laws. The

American Law Institute, Restatement of the

Law, Conflict of Laws, second, 1971,

Chapter 11, Topic 3. An adoption decree

that is void in the state of rendition will

not be recognized in other states. See The

American Law Institute, Restatement of the

Law, Conflicts of Laws, section 78, Comment

Cc.

The 1980 Order of the Lane County

Circuit Court voided ab initio the 1976

adoption decree. As such, it never had any

effect. Therefore, under general conflict

19

of laws principles, Arizona should, and

would, recognize Oregon's interpretation of

an Oregon decree.

In Hughes v. Aetna Casualty Co., 234 Or

426, 383 P2d 55 (1963) the Petitioner moved

to vacate a thirty year old adoption in

which there was no consent from the natural

parents to the adoption. The Respondent

argued that O.R.S. 109.381 acted as a sta-

tute of limitations upon any attack on the

adoption, and, therefore, Petitioner's suit

should be dismissed. The Oregon Supreme

Court specifically noted O.R.S. 109.381 and

then stated that the lack of consent was a

jurisdictional defect that rendered that

adoption a nullity and void on its face.

The court then stated:

"Such a judgment may be attacked at

any time by anyone, including the

party in whose favor it is given,

and may be impeached in any

action, direct or collateral. It

is not necessary to take any steps

to vacate or avoid a void

20

judgment; it may simply be

ignored."

And in regard to O.R.S. 109.381, the court

stated that "...a statute of limitations is

not applicable to a judgment void on its

face." This analysis of the effect of a

statute of limitations upon a void, as

opposed to voidable, adoption has been con-

sistently followed in Oregon. Campbell v.

Kindred, 26 Or App 771, 554 P2d 599 (1976);

Franklin v. Biggs, 14 Or App 450, 513 P2d

1216 (1973); Small v. Andrews, 20 Or App 6,

530 P2d 540 (1975).

In Small v. Andrews, the Oregon Court

of Appeals held that the adoption of

children by their natural father for the

sole reason of terminating her rights was

void. Small v. Andrews, 20 Or. App. 6, 530

P2d 540 (1975). As a void order, the sta-

tutory statute of limitations of ORS

109.381 was irrelevant. Here the natural

21

mother gave, and then later withdrew,

consent. The Court of Appeals, citing to

Hughes, ruled that the subsequent absence

of consent denied the initial court of its

jurisdiction and therefore made the

judgment void. In dicta this Court said;

"Apart from specific statutory

exceptions (ORS 109.314 to

109.329) the consent of parents,

guardian or other person in loco

parentis has been made a jurisdic-

tional prerequisite to the entry

of any adoption decree (ORS

109.312) in this state; action

taken in the absence of the

necessary consent is ‘a nullity,

not voidable, but void' ***," Id.

at 8.

As in Oregon, the Arizona Courts have

ruled that the consent of the natural

parents is a jurisdictional prerequisite.

This was specifically noted in Matter of

Adoption of Hadtrath, 592 P2d 1262, 1264-5,

where the Arizona Court stated, "It is true

that the consent of the natural parents

required by A.R.S. 58-106 is jurisdictional

22

and that a judgment lacking this prere-

quisite would be void." See also Huges v.

Industrial Commission, 2ll P2d 463 (Arz.

1949); In re Adoption of Luke, 414 P2d 176

(Arz.1966); Westerlund v. Croaff, 198 P2d

842 (Arz.1948); In re Gallegos, 187 P. 573

(Arz. 1920).

If the Secretary of Health and Human

Services is saying that the Lane County

Circuit Court lacked jurisdiction in its

decree voiding the adoption, she has mista-

ken certain conflicts of law precepts. To

begin with, one claiming that a sister

state judgment lacked jurisdiction has the

burden of proof Sutton v. Leib, 342 US 402,

72 S.Ct. 398, 96 L Ed 448, reh den 343 US

921, 72 S.Ct. 674, 96 L Ed 1334 (1952). A

judgment which on its face appears to be

that of a court of general jurisdiction is

presumed to have jurisdiction over the

incident case. Adam v. Saenger, 303 US 59,

23

58 S.Ct. 454, 82 L Ed 649, reh den 303 US

666, 58 S.Ct. 640, 82 L Ed 1123 (1938);

Milliken v. Meyer, 311 US 452 61 S.Ct. 339,

85 L Ed 278, reh den 312 US 712, 61 S.Ct.

548, 85 L Ed 1143 (1940); Cook v. Cook, 342

NS 126, 72 S.Ct. 157, 96 L Ed 146 (1959).

The Secretary's assertation in the original

decision that the Oregon Court order "has

no legal force" obviously does not carry

that burden of proof.

Even assuming, arguendo, that the

Oregon Court lacked jurisdiction this is

not an appropriate reason for a sis cer

state to ignore the order. As the Oregon

court considered the question of jurisdic-

tion the principles of res judicata would

preclude a sister state from re-exploring

this area. Treinies v. Sunshine Min. Co.,

308 US 66, 60 S.Ct. 44, 84 L Ed 85, 93, reh

den 309 US 693, 60 S.Ct. 464, 84 L Ed 1034

(1939).

24

II.

DUE PROCESS OF LAW

Whether Appellants were denied Due Process

of Law because Appellants were not given an

administrative hearing by the Appeals

Council of the Social Security

Administration as required by the Order of

the United States District Court for the

Federal District of Oregon dated May 5,

1980?

By the remand order dated May 5, 1980,

in the United States District Court the

Secretary of Health and Human Services was

ordered to hold an additional hearing.

Instead, the Secretary of Health and Human

Services only considered questions of law.

The Secretary did not allow any submission

of facts at the hearing. The Secretary

erred by not holding a new hearing espe-

25

cially considering the inadequate develop-

ment of facts on the crucial issue of the

children's legal or actual dependency. The

1980 Order of the Lane County Circuit Court

recited that testimony was taken yet no

request was made by the Secretary of Health

and Human Services to receive a copy of the

Court transcript.

As a general proposition, the

appropriate process due to an individual

will depend on his/her propriety interest.

There is, of course, no property interest

unless the benefit has previously been

granted by the government to the

indiviudal. See eg. Board of Regents v.

Roth, 408 US 564, 92 S.Ct. 2701, 33 L Ed

548 (1972); Perry v. Sindermann, 408 US

593, 92 S.Ct. 2694, 92 S.Ct. 2771, 33 L Ed

570 (1972). In the case before you, a

determination had been made by the

Secretary and payments had been made to the

26

Plaintiff's children. They, thus, had some

entitlement right to receipt of the Social

Security Trust Fund benefits.

Given that these benefits are intended

to provide for the maintenance and basic

care of the minor children, the benefits

take on aspects of necessities to be pro-

tected by the highest standards of due pro-

cess rights. In Goldberg v. Kelly, the

Supreme Court held that such rights could

not be denied a pre-determination hearing

which included a complete process for the

admission of evidence, cross examination of

witnesses, etc. ... . Goldberg v. Kelly,

397 US 254, 90 S.Ct. 1611, 25 L Ed 287

(1970). On the other hand, there was no

reason, compelling or otherwise, for the

Secretary to only provide such a cursory

hearing.

27

III

EQUAL PROTECTION OF THE LAW

Whether Appellants were denied Equal

Protection of the law by the Secretary of

Health and Human Services for the reason

that the Appellants' status is dependent

upon whatever forum is interpreting the

Lane County Circuit Court Orders?

If the Secretary of Health and Human

Services is able to disregard an Oregon

Order setting aside an adoption, then

important policy issues become relevant

relating to the children's status and,

therefore, their rights. Given the

Secretary's decision, the children's legal

status lacks consistency and

predictability. For Social Security

purposes, the children are born of one

father, for other purposes the children are

28

denominated with different parentage.

Their status, rights, and duties would

depend upon which forum is interpreting the

Lane County Order voiding the adoption.

In dealing with questions of family

rights, the Supreme Court has said,

"...the essential inquiry [is] however,

inevitably, a dual one: What

legitimate state interest does the

Classification promote? What fun-

damental personal rights might the

Classification endanger?" Weber

v. Aetna Casuality and Surety

Co., 406 US 164, 173,92 S. Ct.

1400, 31 L Ed 768 (1972).

In the case before you although not one

dealing with illegitimacy, as was Weber, we

can still look to the stated purposes of

the statute to determine the legitimate

state interest involved. After determining

the purpose of the statute, we must then

balance the personal rights involved.

The stated purposes of the Old-Age and

Survivors Insurance Benefit Plan have been

often and variously stated. Admittedly,

29

one purpose of the section relating to

benefits to children of a deceased insured

member is to aid children who are actually

dependent. Norton v. Weinberger, 390 F.

Supp. 1084 (D.C. Md. 1975), aff'd. 427 US

524, 96 S.Ct. 2771, 49 L Ed 2d 672, Leeson

v. Celebrezze, 225 F. Supp. (D.C. N.Y.).

The courts have also held that the purpose

of this statute is to (l.) offset economic

dislocation, (2.) provide children with

personal attention from the surviving

parent, (3.) assure that families will have

a tolerable standard of living, and (4.)

provide at least some measure of income and

security to those who have lost a parent.

Jones v. Harris, 629 F2d 334 (CA NC 1980),

Hurvich v. Califano, 457 F. Supp. 760 (D.C.

Cal 1978), Silbowitz v. Secretary of

Health, Education and Welfare, 397 F.

Supp. 862 (D.C. Fla. 1975), Ziskin v.

Weinberger, 379 F. Supp. 124 (D.C. Ohio

30

1973). Given the numerous purposes of the

statute, it is difficult to understand the

Secretary's actions.

The statute itself appears to equate

illigetimate with adopted children. 42

uSC8(d) (3). The Supreme Court has noted

that there is a “social opprobrium" suf-

fered by these hapless (illegitimate)

children, but the Equal Protection Clause

does enable us to strike down discrimina-

tory laws relating to status of birth

where...the classification is justified by

no legitimate state interest, compelling or

otherwise." Weber v. Aetna Casualty and

Surety, Co., 406 US 164, 176, 92 S Ct 1400,

1406, 31 L Ed 2d 768 (1972), see also

Jimenez v. Weinberger, 417 US 632, 94 S.Ct.

2496, 41 L Ed 2d 363 (1974). There appears

to be no compelling or other state reason

for ignoring four of the statutes purposes

(noted above) and adopting only the Norton

31

rationale.

The children's interest in this deter-

mination includes, but goes beyond, issues

of economic security. Without doubt the

purpose of the Social Security schemata to

insure base levels of economic well being

will not be served by the Secretary's

decision. See eg. Ray v. Social Security

Board, 73 F. Supp. 58 (DC ala. 1947).

Beyond economic reasons, the Secretary

has fostered upon these children, through

his decision, a status which is confused

and harmful. In order to maintain con-

sistency and predictability of the

childrens' legal status, the Secretary must

recognize the Order setting aside the adop-

tion as valid under Oregon and Arizona law

and give it retroactive effect. The Court

said in Hughs v. Aetna Casualty Co., supra:

“The question is whether the

32

decree of adoption is void because

of asserted procedural defects.

If that be so, the relationship of

mother and son...had never been

severed and he is her sole heir at

law and entitled to take her

estate."

Under Oregon law "to set aside” is

to annul, to make void. Brandt v.

Brandt, 40 OR 485, 67 Pac. 508 (1902).

The Order must be considered valid and

not collaterally declared invalid in

an administrative hearing for Social

Security benefits because of the para-

mount importance of protecting and

giving certainty to their status under

the Lane County Order. That Order had

the legal effect of judically

declaring what was already fact; the

adoption was void, making the children

dependent upon their natural father

and bringing them within the Act's

coverage under 42 U.S.C. 402(d) (3).

33

CONCLUSION

For the foregoing reasons, Petitioner

respectfully prays that a writ of

certiorari should issue to review the

Judgment and Opinion of the United States

Court of Appeals for the Ninth Circuit.

a this 22 day of September, 1983.

Respectfully submitted,

RAYMOND J. BRADLEY

Attorney at Law

P.O. Box 5090

Eugene, Oregon 97405

(503) 343-1473

A 1

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JACQUELYN A. JONES and

JACQUELYN A. Jones, as

Guardian Ad Litem for No. 81-3585

LOREN A. LADD, LORA

ANNE LADD, and DAVID

LADD, Minors,

Plaintiffs-Appellants,

vs. ORDER

(filed June 30,

RICHARD S. SCHWEIKER, 1983)

Secretary of Health and

Human Services,

)

)

)

)

)

)

)

)

)

)

)

)

)

.

Defendant-Appellee. )

)

Appeal from the United States District:

for the District of Oregon

Before: KENNEDY, TANG, and Ferguson,

Circuit Judges.

The petition for rehearing is DENIED.

A 2

APPENDIX 8

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JACQUELYN A. JONES and

JACQUELYN A. Jones, as

Guardian Ad Litem for No. 81-3585

LOREN A. LADD, LORA

ANNE LADD, and DAVID D.C. No.

LADD, Minors, 78-482 RE

Plaintiffs-Appellants,

vs. MEMORANDUM

(filed May 2,

RICHARD S. SCHWEIKER, 1983)

Secretary of Health and

Human Services,

)

)

)

)

)

)

)

)

)

)

)

)

)

Defendant-Appellee. )

)

Appeal from the United States District

Court for the District of Oregon

Honorable James A. Redden,

United States District Judge, Presiding

Argued and Submitted: October 5, 1982

Before: KENNEDY, TANG, and FERGUSON,

Circuit Judges.

Jacquelyn Jones, the appellant, was

married in 1961 to Jack Ladd, the wage

earner in this case. There are three

children of that marriage. Jacquelyn and

A 3

Jack Ladd were divorced in 1968, and

Jacquelyn then married Floyd Jones. Jones

adopted the three children of the first

marriage in a 1969 proceeding in the Lane

County Circuit Court.

Ladd, then residing in Arizona, was

killed in an automobile accident in 1971.

In 1972, Jacquelyn and Jones were divorced.

In 1976, seven years after the adoption

decree had been entered, Jacquelyn obtained

an order from the Lane County Circuit Court

setting the adoption decree aside.

Jacquelyn claims mother's insurance

benefits under the Social Security Act.

The Social Security Administration contends

no dependency status exists because the

children had been adopted by another

individual. 42 U.S.C.A. 8 402(d)(3). The

appellant contends that the decree of Lane

County setting aside the original adoption

serves to reinstate the statutory benefits.

The status of the children vis a vis

their natural father Ladd is, all parties

concede, determined by Arizona law, the

state of Ladd's domicile at the time of his

death. See 42 U.S.C.A. 8 416(h) (3) (A). An

Arizona court is obligated by the United

States Constitution to give full faith and

credit to the valid judgment of the sister

state. United States Constitution, article

IV, section 1. We must decide whether the

full faith and credit clause compels

Arizona to recognize the judgment of the

Lane County Circuit Court.

We believe that Arizona would not

be obligated to recognize the second Oregon

decree. Under Oregon law, a prior judgment

may not be set aside on collateral attack

except for lack of jurisdiction which

appears on the face of the record. State

v. Briggs, 245 Or. 503, 506, 420 P.2d 71

(1967). Adoption decrees are final

A 5

judgments under Oregon's revised statute

109.381. The Lane County Circuit Court set

aside the original adoption decree even

though no jurisdictional defect appeared on

the face of that judgment. It thus

transgressed the scope of its own

jurisdiction, and Arizona courts would not

give the decree full faith and credit.

Jones v. Roach, 118 Ariz. 146. 575 P.2d

345, 348 (Ariz. App. 1977). That leaves in

force the original adoption decree.

The appellant's argument that the

Social Security Administration should have

treated her children as dependents of the

deceased even if they were validly adopted

is ill-founded, since the requisite

payments from the wage earner to the

children have not been established.

The foregoing draws largely upon the

reasoning of United States Magistrate

George E. Juba and United States District

A 6

Judge James A. Redden, both of them skilled

in the interpretation of the laws of the

State of Oregon. We agree with their

analysis and conclusion.

AFFIRMED.

APPENDIX A-7

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

JACQUELYN A. JONES and

JACQUELYN A. Jones, as

Guardian Ad Litem for

LOREN. A. LADD, LORA

ANNE LADD, and DAVID

LADD, Minors,

Civil No.

78-482

Plaintiff,

vs. FINDINGS AND

RECOMMENDATION

RICHARD S. SCHWEIKER, (filed August

Secretary of Health and 21, 1981)

Human Services,

Defendant.

me ee ee eee ee ee ee ee eee

Plaintiff seeks judicial review of a

final determination of the Secretary of

Health and Human Services (Secretary) ter-

minating plaintiff's children's and

mother's social security benefits. This

court has jurisdiction pursuant to 42

U.S.C. 8 405(g). The case turns on whether

an Arizona court would recognize the decree

of an Oregon court setting aside an adop-

tion decree as void ab initio. I determine

A 8

that in this case it would not.

The case has a complicated history

which I set out in my earlier Findings and

Recommendation of May 5, 1980. I merely

summarize that history here.

In 1961, plaintiff Jacquelyn McDuffee

married Jack A. Ladd, the wage earner in

this case. They had three children

together. In 1968, Jacquelyn McDuffee

divorced Jack Ladd and shortly thereafter

married Floyd Jones. In 1969, the Lane

County Oregon Circuit Court issued an adop-

tion decree which recited that Ladd had

consented to the adoption of the three

children by Jones.

Jack Ladd, who was then residing in

Arizona, was killed in an automobile acci-

dent in 1971.

In 1972, Jacquelyn McDuffee and Floyd

Jones were divorced. In 1975, she applied

for mother's and surviving children's

A 9

social security benefits on the account of

Jack Ladd. After some bureaucratic shifts

of position, the Social Security

Administration (SSA) determined that plain-

tiff and her children were elegible for

benefits.

In 1976, Jacquelyn McDuffee obtained an

order from the Lane County Circuit Court

setting aside the adoption decree. In

1977, the SSA again reversed itself and

decided that plaintiff and her children

were not entitled to benefits. An

Administrative Law Judge (ALJ) and the

Appeals Council both agreed with this posi-

tion and it became the final decision of

the Secretary.

In 1978, an appeal of that decision was

filed in this court. While decision was

pending, the Lane County Circuit Court

issued a decree that the adoption was void

ab initio. That decree was based on evi-

A 10

dence which the court heard that Jack Ladd

was not competent to consent to the adop-

tion at the time he purportedly gave his

consent.

Following the filing of this decree, I

issued my Findings and Recommendation that

the case be remanded to the SSA. The

Appeals Council reviewed the case on remand

and decided that plaintiff was still not

entitled to benefits. That decision is the

final decision of the Secretary and is the

decision which is under review in this

proceeding.

None of the critical facts in this case

is in dispute.

In my Findings and Recommendation, I

summarized the relevant sections of the

Social Security Act 42 U.S.C. 88 301 et

seq.:

Plaintiff does not question the

ruling as to mother's benefits,

since that flows inevitably from

A 11

the decision on children's bene-

fits.

The basic eligibility requirements

for children's benefits are set

forth in 8 402(d) of the Act.

This section must be read in con-

junction with § 416 regarding the

determination of family status.

Among the listed requirements are

two distinct but related factors,

namely the child-parent rela-

tionship and the dependency of the

child on the wage earner. Failure

to separate these two factors has

casused much of the confusion in

this case. For a person to

qualify for child's benefits, he

must first be the "child" of the

wage earner. Additionally, he

must be, or have been, dependent

on that wage earner at the man-

datory time, that is the time of

the wage earner's death. 42

U.S.C. 8 402(d) (1) (ii).

A ligitimate child proves his

relationship to the wage earner

father by means of his birth

certificate. 20 C.F.R. § 404.731.

Thus, in the present case, the

"child" status of plaintiff

children with regard to their

natural father Jack Ladd, is not

to be questioned. But that, by

itself, is not enough.

"Dependency" is also required.

For ligitimate children the depen-

dency issue is usually never

raised. Section 402(d) (3) auto-

matically and perpetually confers

A 12

"deemed dependency” on such vis-a-

vis their natural father.

However, there is one important

exception. If “at such time such

insured individual was not living

with or contributing to the sup-

port of such children... and

such children had been adopted by

some other individual" the

children are not deemed to be

dependents of the natural father.

Therefore, section 4029(d) (3) pre-

sumes that the children in

question are in fact issue of the

deceased father. The exclusionary

language describes the only

situation in which the Social

Security Administration denies the

"deemed dependency" presumption to

legitimate children.

Findings and Recommendation at 4-5.

On remand, the Appeals Council based

its decision that plaintiff and her

children are not entitled to benefits on

the fact the wage earner, Jack Ladd, was

domiciled in Arizona, not Oregon. The

Social Security Act, 42 U.S.C. 8

416(h) (2) (A) provides:

In determining whether an appli-

cant is the child or parent of a

fully or currently insured indivi-

dual for purposes of this

A 13

subchapter, the Secretary shall

apply such law as would be applied

in determining the devolution of

intestate personal property by the

courts of the State in which such

insured individual is domiciled at

such time such applicant files

application, or if such individual

igs dead, by the courts of the

State in which he was domiciled at

the time of his death... .

Applicants who according to such

law would have the same status

relative to taking intestate per-

sonal property as a child or

parent shall be deemed such.

The Appeals Council concluded that under

Arizona law, the state in which the wage-

earner was domiciled, the decree setting

aside the adoption ab initio would not be

recognized. Therefore, it reasoned, plain-

tiff is not entitled to benefits because at

the time of his death Arizona would con-

sider the children as having been adopted.

The central issue in this case is now

whether an Arizona court would recognize as

vaild the Lane County Circuit Court decree

setting aside the adoption decree of the

A 14

three children as void ab initio. The

grounds which the Lane County Circuit Court

gave for setting aside the decree ab initio

is that "Mr. Jack A. Ladd did not possess

the mental ability to consent to the adop-

tion of his children by Mr. Floyd Samuel

Jones Jr. on August 4, 1969." In Oregon,

valid consent by the natural parent is a

jurisdictional prerequisite to a valid

adoption. Hughes v. Aetna Casualty Co.,

Or. 426, 435, 383 P.2d 55 (1963).

However, a final judgment may not be

collaterally attacked unless the court's

lack of jurisdiction to enter the judgment

appears on the face of the record. State

v. Briggs, 245 Or. 503, 506, 420 P.2d 71

(1967). An adoption decree is a

final judgment under ORS 109.381. Thus,

under Oregon law, the Lane County Circuit

Court lacked the authority to void the

adoption decree ab initio becuase Ladd's

A 15

lack of capacity to consent did not appear

on the face of the record. The Lane County

Circuit Court had to hear testimony in

order to make its determination that Ladd

lacked capacity to consent.

Arizona would recognize the original

adoption decree because Arizona will give

full faith and credit to final judgments of

its sister states. Jones v. Roach, 118

Ariz. 146, 575 P.2d 345, 348 (Ariz. App.

1977). Finality of judgments is determined

by the law of the state of redition. Id.

at 349. However, Arizona will not give

full faith and credit to a judgment which

is invalid or unenforceable. Id. at 348.

The decree of the Lane County Circuit Court

setting aside the adoption ab initio was

not a vaild judgment under Oregon law.

Therefore, Arizona would not give full

faith and credit. Consequently, under

Arizona law, the children are still the

A 16

adopted children of Floyd Jones. The

children are thus not deemed to be depen-

dents of Jack Ladd under 42 U.S.C. 8

402(d) (3). Plaintiff and her children are

not entitled to mother's and surviving

children's benefits under the Social

Security Act.

Accordingly, the decision of the

Secretary should be affirmed.

Dated this 21 day of August, 1981.

/s/ George Juba

United States Magistrate

A 17

APPENDIX D

Department of

HEALTH, EDUCATION, AND WELFARE

Social Security Administration

Bureau of Hearings and Appeals

DECISION OF APPEALS COUNCIL

(filed October 31, 1980)

In the Case of

Jacquelyn A. Jones

o/b/o/ David, Lora

and Loren Ladd

Claim for

Mother's Insurance

Benefits; Surviving

Child's Insurance

Benefits

(Claimant)

Jack A. Ladd

(deceased)

435-54-7269

(Wage Earner

(Social Security No.)

This case is before the Appeals Council on

remand from the United States District

Court for the District of Oregon (Civil

Action No. 78-842)

The administrative law judge, in the

hearing decision of September 30, 1977,

A 18

held that the clainants were not entitled

to the benefits which they sought, but were

without fault in causing an overpayment of

such benefits and recovery would defeat the

purpose of Title II and be against equity

and good conscience. Thus, the overpayment

was waived. The Appeals Council vacates

its denial of the claimant's request for

review of that decision.

The statements of the administrative law

judge as to the pertinent provisions of the

Social Security Act, the issues in the

case, and the evidentiary facts which were

before him are incorporated herein by

reference.

Evidence in addition to that previously

considered has been introduced into the

record as Exhibits AC-1 through AC- 5 and

is briefly described in the appended list

of exhibits.

A 19

ISSUES

The issues in the case are whether

Jacquelyn A. Jones is entitled to surviving

divorced mother's benefits and whether

Loren, Lora, and David Ladd are entitled to

surviving child's benefits. Specifically,

the issue is whether the above named

children are the children of the deceased

wage earner, as defined in the Act, and

whether they were dependent upon him at the

time specified by the Act.

LAW AND REGULATIONS

Section 202(g) (1) provides that an indivi-

dual shall be entitled to surviving

divorced mother's benefits if such indivi-

dual has in her care a child of the insured

individual entitled to child's insurance

benefits and meets certain other require-

ments and not pertinent herein.

A 20

Section 202(d)(1) provides, as is

pertinent, that a child shall be entitled

to child's insurance benefits if he is the

child of an insured individual and if he

was dependent upon such individual at the

time of his death. Section 202(d) (3) sta-

tes that "a child shall be deemed dependent

upon his father or adopting father or his

mother or adopting mother at the time spe-

cified in paragraph (1) (c)unless, at such

time, such individual was not living with

or contributing to the support of such

child and -

(A) such child is neither the legiti-

mate nor adopted child of such

individual, or

(B) such child has been adopted by

some other individual

For purposes of this paragraph, a child

deemed to be a child of a fully or

A 21

currently insured individual pursuant tc

section 216(h) (2) (B) or section 216(h) (3)

shall be deemed to be the legitimate child

of such individual.

Section 216(h) (3)provides that an applicant

who is the son or daughter of an insurerd

individual, but who is not and is not

deemed to be the child of such insured

individual under paragraph (2), shall

nevertheless he deemed to be the child of

such insured individual if:

"(C) In the case of a deceased

individual -

(i) such insured individual -

(I) had acknowledged in

writing that the applicant

is his son or daughter.

(II) had been decreeded by

a court to be the father of

the applicant, or

A 22

(III) had been ordered by a

court to contribute to the

support of the applicant

because the applicant was

his son or daughter,

and such acknowledgement, court

decree, or court order was made

before the death of such insured

individual, or

(ii) such insured individual is

shown by evidence satisfactory to

the Secretary to have been the

father of the applicant, and such

insured individual was living

with or contributing to the sup-

port of the applicant at the time

such insured individual died."

Section 404.354 (b) of the Social Security

Administration Regulations No. 4 provides

that the Administration looks to the laws

A 23

of the State where the insured had a per-

manent home when he died to determine a

child's relationship to the insured.

Section 404.361 of the Regulations provides

that a natural child is dependent upon the

insured unless the child has been legally

adopted by someone else during the insured

lifetime. In that case, a child is con-

sidered dependent on the insured only if he

was either living with the child or contri-

buting to the child's support when the

insured died.

EVALUATION OF THE EVIDENCE

The facts in the case will be briefly

restated. Jacquelyn A. Jones and Jack A.

Ladd were married on April 1, 1961 and

Loren, Lora, and David Ladd were born to

this marriage. Jacquelyn Jones and Jack

Ladd were divorced on November 21, 1968 and

A 24

she remarried on December 27, 1968 to Floyd

Samuel Jones, Jr. Floyd Jones adopted

Loren, Lora, and David Ladd on August 4,

1969. Jack Ladd died February 27, 1971,

whild domiciled in Arizona. Jacquelyn and

Floyd Jones subsequently were divorced

effective with July 15, 1972. At the time

of his death, Jack Ladd was neither living

with nor contributing to the support of the

children. Neither Arizona, the wage

earner's state of domicile, nor Oregon, the

children's domicile, permit a child to

inherit from his natural parent after he

has been adopted by another unless the

natural parent is married to the adopting

parent. On October 18, 1976, an order was

issued by the Circuit Court of the State of

Oregon for Lane County setting aside the

decree of adoption of Loren, Lora and David

Ladd by Floyd Jones. On March 4, 1980, the

Circuit Court issued a further order

A 25

declarng that the decree of adoption dated

August 4, 1969, was void an initio because

Jack A. Ladd lacked the mental ability to

give consent to the adoption.

The plaintiffs argue that the latter County

Court order have, in effect, found that the

children were never adopted. Therefore, it

is further argued dependency could be

deemed and the children entitled to child's

insurance benefits.

As provided in section 404.354(b) of Social

Security Adminsistration Regulations No. 4

(20 CFR 404.354(b), it is the law of the

state where the wage earner was domiciled

at his death which determine a child's

relationship to the insured. In this case,

the wage earner was domiciled in Arizona

when he died. Thus, the Arizona laws are

controlling. Arizona Revised Statutes,

§8-123, provide that after one year from

A 26

the date of entry of an adoption decree,

any irregularity in the proceeding shall be

deemed cured and the validity of the decree

shall not thereafter be subject to attack

on any such ground in any collateral or

direct proceeding. In Arizona, a final

order of adoption is a final judgment, sub-

ject to the same finality and standing as

any other judgment of a court of competent

jurisdiction. Rule 60(c) of the Arizona

rules of Civil Procedure sets a six-month

limitation on an action to set aside or

reopen a final judgment on the ground that

the judgment was procured through fraud.

However, Arizona courts have held that sta-

tutes of limitation restricting the period

during which judgments may be opened have

no application to void judgments.

In Arizona, a final order of adoption is

void on its face if the court that issues

A 27

it lacks any one of three elements: (1)

jurisdiciton of the subject matter; (2)

jurisdiction of the parties; or (3) juris-

diction to render the judgment given.

Under the facts of the present case,

Arizona courts would not set aside the

adoption decre even if the wage earner's

consent had been fraudulently obtained at

the time of the adoption since jurisdiction

was not at issue. Although a state might

normally give another state's actions "full

faith and credit" under the doctrine of

reciprocity, it is questionable whether

Arizona would consider the above orders

valid since they might be seen simply as

devices to "raid an estate."

Further, Oregon Statutes 109.381 on adop-

tion provide:

(1) A decree of a court of this state

granting an adoption, and the proceedings

A 28

in such an adoption matter, shall in all

respects be entitled to the same presump-

tions and be as conclusive as if rendered

by a court of record acting in all respects

as a court of general jurisdiction over the

persons and the cause shall be presumed to

exist.

(2) Except for such right of appeal as

may be provided by law, decrees of adoption

shall be binding and conclusive upon ali

parties to the proceeding. No party nor

anyone claiming by, through or under a

party to an adoption proceeding, ,ay for

any reason, either by collateral or direct

proceedings, question the validity of a

decree of adoption entered by a court of

competent jurisdiction of this or any other

state.

(3) After the expiration of one year

from the entry of a decree of adoption in

this state the validity of the adoption

A 29

shall be binding on all persons, and it

shall be conclusively presumed that the

child's natural parents and all other per-

sons who might claim to have any right to,

or over the chid, have abandoned him and

consented to the entry of such decree of

adoption, and that the child became the

lawful child of the adoptive parents or

parent at the time when the decree of adop-

tion was rendered, all irrespective or

jurisditional or other defects in the adop-

tion proceeding; after the expiration of

such one-year period no one may question

the validity of the adoption for any

reason, either through collateral or direct

proceedings, and all persons shall be cound

thereby; provided, however, the provisions

of this subsection shall not affect such

right of appeal from a decree of adoption

as may be provided by law.

A 30

(4) The provisions of this section

shall apply to all adoption proceedings

instituted in this state after August 5,

1959. This section shall also apply, after

the expiration of one year from August 5,

1959, to all adoption proceedings insti-

tuted in this state before August 5, 1959.

As can be seen, the Oregon statute also

gives no provision for vacating or voiding

an adoption decree after one year. At the

end of that time it is final and binding

upon all parties. Thus, again even if the

adoption had been improperly granted

initially, there is no basis in the law for

setting it aside or declaring it void ab

initio. Thus, the Council concludes that

the Lane county Circuit Court had no

authority to issue the orders of October

1976 and March 1980 and that even if it did

have such authority, Arizona as the state

A 31

of domicile would not recognize their

validity.

Even aside from the questions of state law,

the children could not be found dependent

upon the wage earner either by deeming or

in actuality at the time of his death. As

stated in the Social Security Act and

Regulations, the children must be dependent

upon the insured at a very specific time,

in this case, as the date of death. On

that date, the children were living with

and legally dependent upon Floyd Jones,

their step-father and adopting father. The

voiding of the adoption decree, even ab

initio, does not negate the fact that the

children were dependent upon their step-

father on the relevant date. The intent of

Congress in promulgating the dependency

requriements of the Act was to protect

those children who were deprived of support

A 32

by the death of the insured. Since a

natural parent has a legal obligation to

support his children, dependency can be

deemed. However, in the case of children

adopted by another, such assumptions cannot

hold. It is clear in this case that the

death of the wage earner did not deprive

the children of support either legally or

in actuality. Therefore, the Appeals

Council finds that the children were not

dependent upon the wage earner at the time

of his. death nor can they be deemed to be

so dependent. To find otherwise would be

contrary to both the intent and effect of

the Social Security Act and would permit

the state courts to adjudicate Social

Security claims at their will and to allow

claimants to retroactively alter the facts

in a case to suit their own purposes.

Therefore, the Appeals Council adopts the

findings of fact set forth in the hearing

A 33

decision of September 30, 1977.

DECISION OF THE APPEALS COUNCIL

It is the decision of the Appeals Council

that, based upon their application of

August 6, 1975, David, Lora, and Loren Ladd

are not entitled to surviving child's bene-

fits as they were not and can not be deemed

to be dependent upon the deceased wage

earner at the time of his death, and

Jacquely A. Jones is not entitled to

mother's insurance benefits as she does not

have a child of the wage earner as defined

in the Social Security Act in her care. It

is the further decision of the Council that

the claimants were without fault in causing

the overpayment of such benefits and that

recovery would defeat the purpose of title

II and be against equity and good

A 34

conscience; the overpayment is waived.

APPEALS COUNCIL

/s/John W. Chambers, Member

John W. Chambers, Member

/s/Roland L. Vaughn, Jr. Member

Roland L. Vaughan, Jr., Member

Date: October 31, 1980

A-35

List of Exhibits

Jacquelyn A. Jones 435-54-7269

(Claimant) (Social Security No.)

Jack A. Ladd

(Deceased)

(Wage Earner)

Exhibit

No. Description

AC-1 Plaintiff memorandum served on

July 2,1979.

AC-2 Transcript of proceedings before

the Honorable George E. Juba,

United States Magistrate, an

December 17, 1979.

AC-3 Order filed on March 4, 1980 in

the Circuit Court of the State of

Oregon for Lane County in the

Matter of Adoption of Loren, Lora,

and David Ladd by Floyd Samuel

Jones, Jr.

AC-4 Plaintiff's memorandum in opposi-

tion to defendant's further reply

brief served on April 7, 1980.

AC-5 Findings and Recommendation date

May 5, 1980 of United States

Magistrate in the United States

District Court for the District of

Oregon.

A 36

APPENDIX E

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

JACQUELYN A. JONES and )

JACQUELYN A. Jones, as)

Guardian Ad Litem for ) Civil No.

LOREN A. LADD, LORA ) 78-482

ANNE LADD, and DAVID ) (842)

LADD, Minors, )

)

Plaintiff, )

)

vs. ) FINDINGS AND

) RECOMMENDATION

JOSEPH A. CALIFANO, JR.,) (filed May 5,

Secretary of Health and ) 1980)

Human Services,

Defendant.

~— i

Pursuant to 42 U.S.C. 8 405(g) plain-

tiff seeks judicial review of a final deci-

sion of the Secretary of Health, Education

and Welfare terminating plaintiff's

children's and mother's Social Security

benefits. The case appears to be one of

first impression, resolving itself ultima-

tely into one question: whether the judi-

cial setting-aside of an adoption operates

retroactively to enable the children to

A 37

draw benefits on the account of their

deceased natural father.

The issue arose out of a long and unu-

sual sequence of events. In January, 1961,

in California, plaintiff Jacquelyn McDuffee

married Jack A. Ladd, the wage-earner in

the case. From this marriage were born

three children, the minor plaintiffs. In

November, 1968, plaintiff-mother obtained a

final divorce decree from wage-earner Ladd

and one month later she married Floyd

Jones. Shortly thereafter, the mother, her

children, and the new husband moved to

Oregon where Mr. Jones filed with the Lane

County Circuit Court to adopt the children

and give them his surname. The court

issued an adoption decree on August 4,

1969, which recited that Jack Ladd had

given his consent to both the adoption and

the name change and that said consents were

on file with the court.

A 38

Wage-earner Jack Ladd subsequently

moved to Arizona. While domiciled there,

he was killed in an automobile accident in

New Mexico in February, 1971. About a year

later, in May, 1972, the marriage of plain-

tiff to Floyd Jones was dissolved by the

court in Lane County, Oregon. The divorce

decree awarded custody of the minor

children to the mother and ordered Floyd

Jones to pay child support. Plaintiff

later testified that he paid little, if

any, support.

In August, 1975, plaintiff Jacquelyn

Jones filed applications for mother's and

surviving children's Social Security bene-

fits on the account of Jack Ladd, the

children's deceased natural father. When

these claims were denied, plaintiff filed a

timely request for reconsideration which

was also denied. This denial, drafted in

Social Security Mid-America Program Center,

A 39

included a lengthy explanation of why the

children were not entitled to benefits.

Plaintiff immediately filed a request for a

hearing. Before a hearing date could be

set, the Mid-America Program Center revised

its earlier denial of benefits. In August,

1976, the center issued a Special

Determination that the children did indeed

meet entitlement standards. A retroactive

lump sum payment was made, and the children

began receiving monthly benefits; mother's

benefits were held back from plaintiff only

because of her high earnings.

With the children receiving Social

Security on the account of Jack Ladd, the

mother sought a court order setting aside

their 1969 adoption by Floyd Jones.

Whatever may have been her motives (and

plaintiff testified that she wished to

relieve Jones of his support obligations),

the adoptive father consented to this

A 40

change. In October, 1976, the Lane County

Circuit Court issued a set-aside decree,

ordering that “for all intents and purposes

said children shall be considered to be the

children of Jack A. Ladd," and changing

the children's names back to Ladd.

This state of affairs lasted only a

short time. In April, 1977, the

Mid-America Program Center again revised

the Special Determination and concluded

that the children were not after all

entitled to benefits. The Center deter-

mined that all benefits paid were in fact

overpayments. Notice was sent to

plaintiff, who requested a hearing to con-

test this determination. Benefits were

terminated and in August, 1977, a hearing

was held before Administrative Law Judge

(ALJ), at which plaintiff and her attorney

appeared and testified.

In September, 1977, the Administrative

A 41

Law Judge issued his decision. Based on

the exhibits and the testimony, the

Administrative Law Judge found that: (a)

the children were issue born to the

marriage of the claimant-mother and Jack

Ladd (finding #4); (b) the children were

adopted by Floyd Jones in August, 1969,

prior to Jack Ladd's death and with Ladd's

consent (finding #7); (c) at the time of

Ladd's death, the children were not living

with Ladd nor was he contributing to their

support (finding #10); (d) the Lane County

court order setting aside the adoption,

issued after Ladd's death, had no legal

force or retroactive effect for Social

Security purposes (finding #12); and (e)

none of the children qualified as Ladd's

children under the Act. The ALJ decided

that the children were not entitled to draw

benefits on Jack Ladd's account. He also

concluded that the mother was ineligible to

A 42

receive benefits, since she did not have in

her care any minor children entitled on the

wage-eaners's account. The ALJ did,

however, waive recovery of the alleged

overpayment. Upon plaintiff's request for

review, the Appeals Council concluded that

the decision of the ALJ was correct and it

became the final decision of the Secretary.

In May, 1978, plaintiff filed this

appeal in the United States District Court.

While the appeal was pending, plaintiff

sought a judicial clarification of the 1976

set-aside decree issued by the Lane County

Circuit Court. In an order dated March 4,

1980, the Circuit Court judge decreed that

the 1976 set-aside order was retroactive

and that the adoption of the three plain-

tiff children by Floyd Jones was “void ab

initio."

SCOPE OF REVIEW

In a Social Security appeal, the fin-

A 43

dings of the Secretary as to any fact, if

supported by substantial evidence, must be

upheld by the reviewing court. Benitez v.

Califano, 573 F.2d 653, 655 (9th Cir.

1978). However, judicial review of a final

administrative decision also entails deter-

mining whether that decision reflects

proper application of the correct law.

Holland v. Flemming, 193 F. Supp. 290, 291

(D. Oregon 1961). The judicial deference

given to findings of fact supported by

substantial evidence is not afforded to

conclusion based on incorrect interpreta-

tions of questions of law. Conley v.

Ribicoff, 294 F. 2d 190, 194 (9th Cir.

1961). None of the critical facts in the

instant case are in dispute. Instead, I

must determine whether the Secretary

correctly applied the relevant statutes.

A 44

APPLICABLE LAW

Since the Social Security

Administration adopted varying positions

while handling these claims, a concise sta-

tement of the applicable law on children's

benefits seems an advisable starting point.

Plaintiff does not question the ruling as

to mother's benefits, since that flows ine-

vitably from the decision on children's

benefits.

The basic eligibility requirements for

children's benefits are set forth in 8 402

(d) of the Act. This section must be read

in conjunction with 8 416 regarding the

determination of family status. Among the

listed requirements are two distinct but

related factors, namely the child-parent

relationship and the dependency of the

child on the wage-earner. Failure to

separate these two factors has caused much

A 45

of the confusion in this case. For a per-

son to qualify for child's benefits, he

must first be the "child" of the

wage-earner. Additionally, he must be, or

have been, dependent on that wage earner at

the mandatory time, that is at the time of

the wage earner's death. 42 U.S.C. 8402

(d) (1) (c) (ii).

A legitimate child proves his rela-

tionship to the wage earner father by means

of his birth certificate. 20 C.F.R.

§404.731. Thus, in the present case, the

"child" status of plaintiff children with

regard to their natural father, Jack Ladd,

is not to be questioned. But that, by

itself, is not enough. “Dependency” is

also required.

For legitimate children the dependency

issue is usually never raised. Section 402

(d) (3) automatically and perpetually con-

fers “deemed dependency” on such children

A 46

vis-a-vis their natural father. However,

there is one important exception. If "at

such time such insured individual was not

living with or contributing to the support

of such children....and such children had

been adopted by some other individual” the

children are not deemed to be dependents of

the natural father.

Therefore, section 402 (d)(3) presumes

that the children in question are in fact

issue of the deceased father. The exclu-

sionary language describes the only

situation in which the Social Security

Administration denies the “deemed

dependency" presumption to legitimate

children.

CONCLUSION

In the present case, then, all referen-

ces to the status of plaintiff children as

"children" of Jack Ladd are irrelevant and

A 47

superfluous. The Secretary does not

dispute that these children are the legiti-

mate issue of Jack Ladd and are therefore

his “children” for Social Security

purposes. However, the Secretary points

out that this fact would not be sufficient

for entitlement, if they fail to meet the

"dependency" test because of their

adoption.

The critical fact here is that five

years after Ladd's death and seven years

after the adoption of the children by

Jones, the mother secured a court order

setting aside that adoption. Subsequently

that same court formally ruled that this

set-aside order was retroactive and that

the adoption was void ab initio. The

question is whether the latest decree remo-

ves the children from the statutory excep-

tion and restores them to the status of

automatic "deemed dependency” on their

A 48

deceased natural father, Jack Ladd.

There appears to be no case directly on

point. However, several Social Security

cases involving widow's benefits are anala-

gous to this action. The issue in each

case was whether a judicial order invali-

dating a marriage wiped it off the record

so completely that for Social Security pur-

poses it could be considered never to have

existed. In Holland v. Ribicoff, 219

F.Supp. 274 (D. Oregon 1962), decided under

an earlier version of the Act, the court

held that an Oregon court order voiding a

marriage ab initio fixed the widow's status

as having never been married. Accordingly,

the court ruled that the Secretary was

bound by this state court determination.

The court stressed that the decree in

question explicitly spelled out the

retroactive voiding of the marriage.

Accord, Legory v. Finch, 424 F.2d 406 (3rd

Cir. 1970).

There is Oregon precedent holding that

a state court may, under certain

circumstances, set aside an adoption decree

with a similarly retroactive effect. In

Huges v. Aetna Casualty Company, 234 Or.

426, 383 P.2d 55 (Oregon 1963), an Oregon

court voided an adoption decree retroac-

tively so as to permit the child to inherit

from his natural mother as though the adop-

tion decree had never taken effect.

The Secretary and this court must give

the Lane County decree exactly the weight

and effect which it purports to carry.

Since that decree expressly voids the ori-

ginal 1967 adoption ab initio, it fixes the

plaintiff childrens' legal status as that

of never having been adopted by Jones.

Therefore, the children, as the natural

children of Jack Ladd, must be deemed to

have been dependent on Ladd at the time of

a aie

A 50

his death.

Plaintiff's motion to supplement the

record is granted. A certified copy of the

Lane County Circuit Court order voiding ab

initio the decree of adoption is made part

of the record.

The Secretary should be given the

opportunity to reconsider the decision in

light of the state court's order.

Accordingly, I find that good cause exists

for remanding this action to the Secretary

for additional hearing. A copy of the

relevant state court order is attached.

Dated this 5 day of May, 1980.

/s/George Juba

United States Magistrate

A 51

APPENDIX F

IN THE CIRCUIT COURT OF THE STATE OF OREGON

FOR THE COUNTY OF LANE

IN THE MATTER OF THE

by FLOYD SAMUEL JONES,

JR.

)

ADOPTION )

)

OF ) No. 3643

)

LOREN A. LADD, LORA ) ORDER

ANNE LADD, and DAVID ) (filed March

LADD, Minor Children, ) 4, 1980)

)

)

)

THIS MATTER having come for hearing

before the Honorable F. Gordon Cottrell on

the 20th day of February 1980, to determine

whether a prior Order to set aside a Decree

of Adoption in the above entitled matter

dated the 18th day of October 1976 is

retroactive to August 4, 1969. And to

determine whether the Decree of Adoption

entered the 4th day of August 1969 in the

above entitled matter is Void Ab Initio.

This hearing was requested by Jacquelyn

Anne Jones, Loren A. Ladd, Lora Anne Ladd

A~52

and David Ladd.

After receiving Testimony from the

following persons: Vernette Christensen,

Sonny Becker, Jacquelyn Jones, Loren A.

Ladd, Jim Lakehomer, and Wayne Allen

regarding whether Mr. Jack A. Ladd,

deceased, had the mental ability to consent

to the adoption of his children on August

4, 1969. The Court finds from the

Testimony that Mr. Jack A. Ladd did not

possess the mental ability to consent to

the adoption of his children by Mr. Floyd

Samuel Jones, Jr. on August 4, 1969.

IT IS HEREBY ORDERED, ADJUDGED AND

DECREED that the Order entered by the

Honorable F. Gordon Cottrell on October

18th, 1976, which Order set aside the

Decree of Adoption, is retroactive to

August 4, 1969.

It is further order, adjudged and

decreed that the Court finds that Mr. Jack

A 53

A. Ladd, deceased, lacked the mental abi-

lity to give his consent to the adoption of

Loren A. Ladd, Lora Anne Ladd, and David

Ladd, by Mr. Floyd Samuel Jones, Jr., on

August 4, 1969. Therefore the adoption is

Void Ab Initio.

IT IS SO ORDERED this 4th day of March,

1980.

/s/F. Gordon Cottrell

CIRCUIT COURT JUDGE

A 54

APPENDIX G

IN THE CIRCUIT COURT OF THE STATE OF OREGON

FOR THE COUNTY OF LANE

IN THE MATTER OF THE

by FLOYD SAMUEL JONES,

JR.

)

ADOPTION )

)

OF ) No. 3643

)

LOREN A. LADD, LORA ) ORDER

ANNE LADD, and DAVID ) (filed October

LADD, Minor Children, ) 18, 1976)

)

)

)

THIS MATTER having come before the

Court on the Motion of Jacquelyn Anne

Jones supported by her Affidavit and the

Consent of Floyd Samuel Jones, and the

Court having fully considered the matter,

NOW, THEREFORE, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the Decree of

Adoption heretofore entered in the above

entitled case by this Court on the 4th day

of August, 1969, be set aside and the names

of each of the children be restored to

their prior names as follows:

A 55

LOREN A. LADD, LORA ANNE LADD AND DAVID

LADD and that for all intents and purposes

said children shall be considered to be the

children of Jack A. Ladd and that Floyd

Samuel Jones, Jr. shall have no further

claim whatsoever to said minor children.

IT IS SO ORDERED this 18th day of

October , 1976.

/s/F. GORDON COTTRELL

CIRCUIT JUDGE

a